Legislative Memo: In Support of the Reproductive Services Act

The right to decide when, whether, and how to have a child is fundamental to women’s autonomy, dignity, and equality. This right affects every aspect of a woman’s life – her economic status, her educational aspirations, her career goals, her health, and the health of her family.

New York law does not adequately protect this right; the law actually prevents health care providers from offering the best reproductive health care possible.

The Reproductive Services Act (A.6221/ S.4432) would amend New York law to ensure that every woman has the ability to make the personal family planning decisions that are best for her and her family. NYCLU believes that this reform is critical and long-overdue, and we urge the legislature to immediately pass this bill.

The Reproductive Services Act would fix a troubling gap in New York’s abortion law. New York reformed its abortion law in 1970, three years before the Supreme Court issued its landmark decision in Roe v. Wade.1

While New York law allows abortion care throughout a pregnancy when necessary to preserve a woman’s life, the law does not allow abortion care after 24 weeks from the commencement of pregnancy to preserve a woman’s health or in cases where a fetus is not viable.

The U.S. Constitution requires state law to allow for abortion in each of these circumstances.2 Because New York law does not comport with Supreme Court jurisprudence and is out of step with current medical practice, the law is not only constitutionally deficient, it is a barrier to effective and affordable care for women in New York State.

A woman can experience serious complications throughout pregnancy. Indeed, severe fetal anomalies and maternal health risks are more likely to occur later in pregnancy – past the 24 week bright line in New York law. Although rare, when these circumstances do arise, a fear of criminal prosecution often deters health care providers in New York from offering the best reproductive health care possible.

As a consequence, New York law jeopardizes women’s health and safety. When a doctor in New York is reluctant, or unwilling, to provide abortion care in these circumstances, a woman may be forced to travel to another state to get the care she needs – and if she can’t afford to travel, she must forego care altogether.

In this circumstance a woman may feel compelled to delay medical care until her health deteriorates to the point where her life is in danger; or she may feel she has no choice but to carry a non-viable fetus to term, with potentially catastrophic consequences for her own health and safety.3

While these situations are rare, the consequences of the current legal framework put women in dangerous, unnecessary, and often untenable positions. For example, in the summer of 2012, Sophia, a patient in her late 20s, was battling five types of cancer – the result of a rare genetic disorder.

Because chemotherapy and medications made her menstrual cycle irregular, and because her doctors told her that pregnancy was all but impossible while undergoing treatment, Sophia was stunned to find out she was pregnant and late in her pregnancy. Sophia learned that the fetus had multiple severe fetal anomalies as a result of her cancer treatment, and was unlikely to survive on its own after birth.

However, because Sophia’s pregnancy was beyond New York’s 24 week legal limit, providers would not take the legal risk associated with performing abortion at that stage. Sophia’s only option to get the care she needed was to travel outside of New York State. Her illness made traveling risky and required expenses beyond her means.

The cost of the abortion came to $12,500, not including travel and lodging expenses. After an emergency fundraising campaign for Sophia, she was ultimately able to travel 2,000 miles across the country to receive the care she needed. No woman should have to jeopardize her health and life and leave New York State to get the healthcare she needs.

The Reproductive Services Act will ensure that women can get the care they need by bringing our law in line with current medical standards and federal law. By aligning New York law with federal constitutional law, a woman would have the explicit right under New York law to access the care she needs when her health is at risk or the fetus is not viable.

Further, by prohibiting prosecutions of health care professionals that provide care that is in line with current medical standards and Constitutional protections, the Reproductive Services Act ensures that health care professionals can provide women with the health care they need without fear of criminal consequences.

To reclaim its status as a national leader and a champion for women, New York must enact the Reproductive Services Act. Across the country and in our own state, women’s reproductive rights have become a political pawn in the legislative arena. But to New York’s voters, protecting women’s reproductive freedom is essential and non-controversial.

Indeed, seven out of ten New York voters – across religious and party lines – support making these changes to our law.4 The New York State legislature must not delay any further; we call on lawmakers to pass this critical piece of legislation immediately.

1 N.Y. Penal Law § 125.05.

2Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (The United States Supreme Court has ruled that any outright state ban on post-viability abortions must contain a provision that allows for abortions necessary to preserve the life or health of the woman. This means that states may not ban abortion care at any point in pregnancy in instances where a fetus is not viable or when a woman’s life or health is endangered).

3 In order to better document the scope of the problem in New York, in 2013 the NYCLU reached out to hundreds of health care professionals and heard many stories from providers who felt that New York law tied their hands and left their patients with few, if any, options. Third trimester pregnancy terminations are very rare. However, when they are needed, patients face tragic and potentially dangerous situations. For materials describing these stories please contact the NYCLU.